Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRYAN ORNELAS, Case No. 25-cv-0916-BAS-JLB 12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT’S PARTIAL MOTION TO DISMISS 14 MARKWAYNE MULLIN, PLAINTIFF’S AMENDED 15 Defendant. COMPLAINT (ECF No. 21)

17 Presently before the Court is Defendant’s motion to partially dismiss Plaintiff’s 18 amended complaint.1 (ECF No. 21.) Defendant moves to dismiss the third and fourth 19 causes of action for failure to state a claim pursuant to Federal Rule of Civil Procedure 20 12(b)(6). (Id.) 21 The partial motion to dismiss is fully briefed. (ECF Nos. 21, 22, 23.) The Court finds 22 Defendant’s motion suitable for determination on the papers submitted. See Fed. R. Civ. 23 P. 78(b); Civ. L.R. 7.1(d)(1). 24 Upon review, the Court GRANTS IN PART without leave to amend and DENIES 25 IN PART Defendant’s partial motion to dismiss. 26 27 1 On March 24, 2026, Markwayne Mullin became the Secretary of the United States Department of Homeland Security. He is therefore substituted as Defendant in this suit for the prior Secretary, Kristi 28 1 I. BACKGROUND 2 On May 20, 2026, Plaintiff filed an amended complaint (1) alleging race and national 3 origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 4 U.S.C. § 2000e et seq., and age discrimination under the Age Discrimination in 5 Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and (2) challenging an 6 adverse agency personnel decision. (ECF No. 16.) The amended complaint sets out the 7 following factual background.2 8 Plaintiff, a Hispanic male over the age of forty, was employed by the United States 9 Department of Homeland Security. (Am. Compl. ¶¶ 3, 5, ECF No. 16.) 10 On April 21, 2021, a California Highway Patrol (“CHP”) officer stopped Plaintiff 11 while driving. (Id. ¶ 6.) The CHP officer asked Plaintiff to submit to a breathalyzer test. 12 (Id.) Plaintiff declined. (Id.) Plaintiff’s subsequent blood test reflected a blood-alcohol 13 level below the DUI threshold. (Id.) However, because Plaintiff declined the breathalyzer 14 test, Plaintiff’s license was suspended for one year. (Id.) 15 The Department of Homeland Security had a policy permitting employees who lost 16 their licenses due to a DUI to obtain a restricted license to drive at work. (Id.) Plaintiff’s 17 position did not require a driver’s license. (Id.) But Plaintiff received a proposed removal 18 and then a removal from his position. (Id. ¶¶ 6, 7.) Plaintiff alleges that the agency did not 19 terminate at least one “similarly situated” and “non-Hispanic” border patrol agent who 20 failed to meet a positional requirement and retained one “similarly situated” and 21 “substantially younger” border patrol agent who engaged in serious misconduct. (Id. ¶ 6.) 22 On or about February 2, 2022, Plaintiff filed a “mixed case” appeal with the United 23 States Merit Systems Protection Board (“MSPB”). (Id. ¶ 7.) Administrative Judge 24 Borrowman conducted an evidentiary hearing. (Id. ¶ 8.) Judge Borrowman issued a 25 26 2 The Court notes that the content of Plaintiff’s amended complaint remains largely the same as 27 the allegations in the original complaint; for example, even an error in naming the Department of the Navy—instead of the Department of Homeland Security—has remained across the complaints. (Compare 28 1 decision in favor of Plaintiff on October 11, 2022, reversing the agency’s removal and 2 ordering Plaintiff reinstated with back pay. (Id. ¶ 9.) The agency appealed Judge 3 Borrowman’s decision. (Id.) 4 On March 21, 2025, two members of the full MSPB reversed Judge Borrowman’s 5 decision, resulting in Plaintiff’s termination. (Id.) Plaintiff cites news articles and reports 6 discussing the MSPB’s treatment of federal employees as neither fair nor objective. (Id. ¶ 7 10.) 8 II. LEGAL STANDARD 9 Rule 8(a)(2) requires “a short and plain statement of the claim showing that the 10 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A Rule 12(b)(6) motion tests that 11 standard by seeking dismissal for failure to state a claim upon which relief can be granted. 12 Fed. R. Civ. P. 12(b)(6). 13 To survive a motion to dismiss, a complaint must contain more than “labels and 14 conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. 15 v. Twombly, 550 U.S. 544, 555 (2007). While legal conclusions may provide the framework 16 of a complaint, “they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 17 662, 679 (2009). The plaintiff must plead “factual content that allows the court to draw the 18 reasonable inference that the defendant is liable for the misconduct alleged”—in other 19 words, enough to render the claim plausible. Id. at 678 (citing Twombly, 550 U.S. at 570). 20 In ruling on a motion to dismiss, the court accepts the complaint’s factual allegations 21 as true and construes the pleadings in the light most favorable to the nonmoving party. See 22 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The 23 court may not look beyond the complaint. See United States v. Ritchie, 342 F.3d 903, 907 24 (9th Cir. 2003). 25 If dismissal is warranted, the court considers whether to grant leave to amend. Leave 26 should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). At the same 27 time, “a district court may dismiss without leave where a plaintiff’s proposed amendments 28 would fail to cure the pleading deficiencies and amendment would be futile.” Cervantes v. 1 Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). “[T]he district court’s 2 discretion to deny leave to amend is particularly broad where plaintiff has previously 3 amended the complaint.” Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 4 1072 (9th Cir. 2008) (quotation omitted). 5 III. ANALYSIS 6 A. Age Discrimination under the ADEA 7 The ADEA prohibits an employer from “discharging” an employee who is over forty 8 years of age “because of” the employee’s age. See Sheppard v. David Evans & Assoc., 694 9 F.3d 1045, 1049 (9th Cir. 2012). An ADEA plaintiff may establish age discrimination 10 through either direct or circumstantial evidence. Id. Circumstantial evidence claims are 11 analyzed under the McDonnell Douglas framework, outlined in the Court’s previous Order. 12 Id. Importantly, “[a] plaintiff in an ADEA case is not required to plead a prima facie case 13 of discrimination in order to survive a motion to dismiss.” Id. at 1050 n.2 (emphasis in 14 original) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508–11 (2002)). 15 Here, Plaintiff once more pleads that he is at least forty years old. Additionally, 16 Plaintiff alleges that an individual, similarly situated and younger, was not fired for serious 17 misconduct. Cf. Tukay v. United Cont’l Holdings, Inc., No. 14-CV-04343-JST, 2014 WL 18 7275310, at *4 (N.D. Cal. Dec. 22, 2014) (denying the defendant’s motion to dismiss where 19 the plaintiff alleged that “other employees who were of a different race or age than himself, 20 and who had committed similar or worse misconduct, were not terminated from 21 employment by [the] defendant”). Plaintiff has alleged enough to raise a plausible claim, 22 even though he does not satisfy a prima facie case of age discrimination. 23 Thus, the Court denies Defendant’s motion to dismiss the ADEA claim. 24 B. Review of an Agency Decision 25 A “mixed case” brought under 5 U.S.C. § 7703(b)(2) involves both a personnel 26 action normally appealable to the MSPB and a claim of discrimination. See Washington v. 27 Garrett, 10 F.3d 1421, 1428 (9th Cir. 1993). When the MSPB decides a mixed case, review 28 lies in the district court rather than the Federal Circuit. See Perry v. Merit Sys. Prot. Bd., 1 582 U.S. 420, 423 (2017). The district court accordingly reviews both the lawfulness of the 2 personnel action and the discrimination claim—though under different standards. See 3 Washington, 10 F.3d at 1428. 4 Review of personnel action is deferential. See Crowe v. Wormuth, 74 F.4th 1011, 5 1037 (9th Cir. 2023). The court shall “hold unlawful and set aside any agency action, 6 findings, or conclusions found to be”: 7 (1) arbitrary, capricious, an abuse of discretion, or otherwise not 8 in accordance with law; 9 (2) obtained without procedures required by law, rule, or 10 regulation having been followed; or 11 (3) unsupported by substantial evidence; 12 5 U.S.C. § 7703(c); see Romain v. Shear, 799 F.2d 1416, 1421 (9th Cir. 1986). 13 Here, Plaintiff has made conclusory allegations regarding the MSPB’s findings and 14 conclusions that cannot state a plausible claim. See Mortezai v. Dep’t of Def., No. CV 15- 15 2067 FMO (ASX), 2015 WL 9595392, at *4 (C.D. Cal. Dec. 30, 2015) (determining that 16 the plaintiff “presents no grounds for disturbing the MSPB’s decision” where he “does not 17 supply facts sufficient to show the possibility of an error in the MSPB’s conclusion”). 18 Plaintiff’s only additional allegations concern news articles and reports that supposedly 19 suggest an inference of arbitrariness. Plaintiff alleges the following: 20 Plaintiff is informed and believes and on that basis alleges 21 that like the Trump Administration in general, the Trump 22 MSPB’s treatment of federal employees is not fair or 23 objective and that therefore a plausible conclusion is that 24 the MSPB in Plaintiff’s case was arbitrary, capricious, and 25 abused its discretion, or otherwise acted not in accordance 26 with law, and/or acted without procedures required by law, 27 rule, or regulation and/or the MSPB decision is 28 unsupported by substantial evidence. 1 ||(Am. Compl. ¥ 10.) 2 Although Plaintiff makes general allegations about MSPB bias—based on various 3 ||news articles and reports—Plaintiff fails to allege facts demonstrating that the decision in 4 || Ais case is the result of bias. In other words, there are no allegations that the treatment he 5 received plausibly indicates arbitrariness. 6 Nor can Plaintiff satisfy plausibility by pleading conclusory allegations on 7 information and belief, because there are no factual allegations regarding his case. See Soo 8 || Park v. Thompson, 851 F.3d 910, 928 (9th Cir. 2017) (deciding that the plaintiff “nudged 9 ||her claim” to plausibility where she relied on factual allegations upon information and 10 || belief). 11 Similar to the original complaint, Plaintiff's amended complaint offers no plausible 12 || allegations of procedural or substantive deficiencies in the MSPB’s decision. The Court 13 || provided Plaintiff with an opportunity to allege defects, but to no avail. Plaintiff instead 14 || cited general news articles and reports; further, Plaintiff did not make the effort to identify 15 || how these news articles or reports relate to his case. Plaintiff's amended complaint broadly 16 || discusses the bias of the Trump-MSPB board, “like the Trump Administration in general.” 17 ||Such pleadings are once more insufficient. Thus, the Court grants with prejudice 18 || Defendant’s motion to dismiss the § 7703(b)(2) claim. 19 CONCLUSION 20 Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendant’s 21 partial motion to dismiss. (ECF No. 21.) Specifically, the Court DENIES Defendant’s 22 ||request to dismiss the ADEA claim. The Court GRANTS Defendant’s request to dismiss 23 § 7703(b)(2) claim without leave to amend. 24 IT IS SO ORDERED. 25 ~ 26 || DATED: August 3, 2026 (yatta Bahar 47 H n. Cynthia Bashant, Chief Judge United States District Court 28 _f_